Excerpt:.....failed to deposit the amount of excise duty payable by him under the order of the superintendent, central excise, and the deposit of this amount was necessary before the appeal could be entertained; (supra). 5. learned counsel then said that the appeal and the revision petition filed by the applicant were dismissed not on a consideration of the merits of the matter but on account of the failure of the petitioner to comply with the condition precedent to the entertainment of the appeal, namely, the making of the deposit as required by section 189 of the sea customs act, 1879, as applied to the central excises and salt act, 1944 and the rules made thereunder and that, therefore, it could not be said that the order of the superintendent, central excise, merged in the order of the appellate..........should not be imposed for contravention of rules 9(1) and 53(a) read with rule 226(ii) of the central excise rules, and for quashing an order made by the said authority on 31st march, 1961 holding the petitioner guilty of offences punishable under rules 9(2) and 226(ii) and imposing on it a penalty of rs. 50/- the superintendent also made an order for the recovery of duty at the appropriate rate from the petitioner on 469.20 maunds of linseed oil which he found the petitioner mill had removed without payment of duty thereon.2. this petition must be dismissed. the petitioner had admittedly filed an appeal against the order of the superintendent, central excise, raipur, to the collector of central excise, nagpur, and that appeal was rejected by the collector on 18th september, 1961......

Judgment:

K.L. Pandey, J.

1. This is an application under Articles 226 and 227 of the Constitution of India for the issue of a writ of certiorari for quashing a notice by the Superintendent, Central Excise, Raipur, on 21st October, 1960 to the petitioner asking it to show cause why a penalty should not be imposed for contravention of Rules 9(1) and 53(a) read with Rule 226(ii) of the Central Excise Rules, and for quashing an order made by the said authority on 31st March, 1961 holding the petitioner guilty of offences punishable under Rules 9(2) and 226(ii) and imposing on it a penalty of Rs. 50/- The Superintendent also made an order for the recovery of duty at the appropriate rate from the petitioner on 469.20 maunds of linseed oil which he found the petitioner mill had removed without payment of duty thereon.

2. This petition must be dismissed. The petitioner had admittedly filed an appeal against the order of the Superintendent, Central Excise, Raipur, to the Collector of Central Excise, Nagpur, and that appeal was rejected by the Collector on 18th September, 1961. Thereupon the petitioner preferred a revision petition to the Government of India in the Ministry of Finance, New Delhi. According to the applicant, the Collector rejected the appeal as the petitioner had failed to deposit the amount of excise duty payable by him under the order of the Superintendent, Central Excise, and the deposit of this amount was necessary before the appeal could be entertained; and that for the same reason the Government of India also did not entertain the revision petition preferred by the applicant.

3. The petitioner's appeal having been dismissed by the Collector, Central Excise, Nagpur, it must be held on the authority of a recent pronouncement of the Supreme Court in the Collector of Customs, Calcutta v. The East India Commercial Co. Ltd., Calcutta and Ors. (Civil Appeal No. 383 of 1961, decided on 30th April, 1962) that the order of the Superintendent, Central Excise merged in the order of the appellate authority, and that the order of the appellate authority also merged in the order of the Government of India rejecting the revision petition. The only effective order now is that of the Central Government or of the appellate authority. As above both these authorities are beyond our territorial jurisdiction, it is not open to us to issue a writ to the original authority, namely the Superintendent, Central Excise, Raipur. In the Supreme Court case referred to above, an order imposing on the East India Commercial Co. Ltd, Calcutta and others, a penalty under the Sea Customs Act, 1878, had been made by the Collector of Customs, Calcutta. The Company appealed to the Central Board of Revenue against the order of the Collector which was dismissed. While considering the question whether the order of the appellate authority even where the appellate authority merely dismissed the appeal without any modification of the order of the original authority.

'It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the original authority. The question, therefore, is whether there is any difference between those two cases and the third case where the Appellate Authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw distinction between the first two kind of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reserved the original order or modified it or confirmed it. In law, the appellate order or confirmation is quite as efficacious as an operative order as an appellate order of reversed or modification. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it seems difficult to hold even in a case where the appellate authority has confirmed the order of the original authority that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority, which has confirmed the order of the original authority. In effect, by issuing a writ to the original authority setting aside its order, the High Court would be interfering with the order of the appellate authority which had confirmed the order of the original authority even though it has no territorial jurisdiction to issue any writ to the appellate authority. We therefore, feel that on principle when once an order of an original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the High Court, it is the order of the latter authority which is the operative order after the appeal is disposed of, and as the High Court cannot issue a writ against the appeallate authority for want of territorial jurisdiction it would not be open to it to issue a writ to the original authority which may be within its territorial jurisdiction once the appeal is disposed of, though it may be that the appellate authority has merely confirmed the order of the original authority and dismissed the appeal.'

4. Shri Bhava, learned counsel for the petitioner drew our attention to the decision of this Court in J.N.Oil Mills v. Assistant Collector, Central Excise (A.I.R. 1961 M.P. 148) where it has been held that there is no merger of the orders of demand made by an Inspector of Central Excise under Rule 9(2) of the Central Excise Rules and of the Appellate Authority under Section 35(i) in an order made by the Central Government in revision under Section 36. In view of the recent decision of the Supreme Court in the Collector of Customs, Calcutta v. The East India Commercial Co. Ltd, Calcutta and Ors. (Supra), the view expressed in J.N. Oil Mills v. Assistant Collector, Central Excise (Supra), reliance was placed inter alia on the decision of the Calcutta High Court in East India Commercial Co. Ltd. v. Customs Collector (A.I.R. 1961 Cal. 1) It is this very decision of the Calcutta High Court which has been reversed by the Supreme Court in the Collector of Customs Calcatta v. The East India Commercial Co, Ltd., Calcutta and Ors. (Supra).

5. Learned counsel then said that the appeal and the revision petition filed by the applicant were dismissed not on a consideration of the merits of the matter but on account of the failure of the petitioner to comply with the condition precedent to the entertainment of the appeal, namely, the making of the deposit as required by Section 189 of the Sea Customs Act, 1879, as applied to the Central Excises and Salt Act, 1944 and the Rules made thereunder and that, therefore, it could not be said that the order of the Superintendent, Central Excise, merged in the order of the appellate or revisional authority. The argument was that as the petitioner had no appeal or a revision petitioner had not complied with the condition precedent to the filing of an appeal or a revision petition under which it was open to him, it was in the same position as if it had not appealed or filed a revision petition at all. We are unable to accept this distinction. In the Collector of Customs, Calcutta v. The East India Commercial Co. Ltd. Calcutta and Ors. (Supra), the Supreme Court has not recognized any such distinction in the revisional authority. The petitioner's appeal and revision petition were not dismissed for non-prosecution. The Central Excise and Salt Act, 1944, and the Rules thereunder nowhere lay down that an appeal or a revision petition shall stand dismissed without further order if it is not filed in compliance with Section 189 of the Sea Customs Act as applied to the Central Excise and Salt Act. Even if the duty amount is not deposited as required by Section 189 an order of the appellate or revisional authority is necessary for the dismissal of the appeal or the revision petition. So the argument that the petitioner was in the same position as if it had not appealed or filed a revision petition at all falls to the ground.

6. In this connection it would be pertinent to refer to a decision of the Allahabad High Court in Benirai v. Ram Lakhan Rai (I.L.R, 20 All 367) where even the dismissal of an appeal for want of prosecution was regarded as affirming the decision of the Court immediately below. So also it was held in Rai Mahadeo v. Secretary of State for India (I.L.R. 64 All. 390) that an order dismissing an appeal for the appellant's failure to furnish security for costs under the provisions of Order 41, Rule 10 of the Code of Civil Procedure was an order which had the effect of confirming the decision of the court below. The Lahore High Court also held in Chuni Lal Tulsi Amin Chand (I.L.R. 14 Lah. 609) that an order dismissing an appeal on the ground that owing to the Appellant's failure to implead the representatives of a deceased respondent, was a final order affirming the decision of the Court below. If orders of the type dealt with by the Allahabad and Lahore High Courts or orders affirming the decision of the court below, then clearly the orders of the Collector, Central Excise, and the Government of India dismissing the petitioner's appeal and revision must be held to be orders affirming the decision of the Superintendent of Central Excise, Raipur. The affirmance of the order necessarily involves the merger of the order of the Superintendent, Central Excise, in the order of the appellate arid the revisional authorities.

7. For these reasons we are of the opinion that this application for the issue of a writ of certiorari for quashing the decision of the original authority, the Superintendent, Central Excise, Raipur, must be and is dismissed. In the circumstances of the case we make no order as to costs. The outstanding amount of the security deposit shall be refunded to the petitioner.